Constitution Daily

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Guantanamo debate rages 11 years after 9/11

September 11, 2012 by Scott Bomboy


The U.S. government’s role in the detention and trial of alleged terrorists at its Guantanamo Bay naval base is still under debate on the 11th anniversary of the attacks.



On Monday, the second-in-command of al-Qaeda in the Arabian Peninsula (AQAP), Said al-Shihri, was reportedly killed in Yemen. That group is considered one of the world’s most dangerous terrorist groups by U.S. authorities.


Al-Shihri was a Guantanamo prisoner, officially #327, who was released by the U.S. in 2007, and it appears he was killed in a drone attack on Monday in southern Yemen.


Al-Shihri was initially sent from Guantanamo to his native Saudi Arabia for rehabilitation, and he made his way to Yemen. The drone attack on Al-Shihri was apparently not the first time he was targeted in remote-controlled attacks.


Drones and Guantanamo have become common media topics since September 10, 2011, when the world couldn’t have imagined them as part of the post-9/11 landscape.


Both topics have become constitutional and Supreme Court questions. Attorneys are arguing over the due process issues of using drones overseas to kill terrorists, some of whom are U.S. citizens. The rules and processes of detaining foreign nationals at Guantanamo for trial have led to heated legal debates.


Last week, a federal judge issued a ruling that is a victory for the Guantanamo prisoners. U.S. District Court Judge Royce Lamberth said the Obama administration and the military can’t set the rules for how defense attorneys operate at Guantanamo.


“In the case of Guantanamo detainees, access to the courts means nothing without access to counsel,” said Lamberth.


“The government’s attempt to supersede the court’s authority is an illegitimate exercise of Executive power. … This very notion offends the separation of powers principles and our constitutional scheme.”


About 167 terrorist suspects are being held at America’s oldest overseas naval base, isolated on a 45-square mile section of Cuba’s coast.


Shortly after his election, Barack Obama pledged to stop using Guantanamo as a holding facility, but after four years, the base is still in use as a prison as Congress and the Obama administration debate moving the prisoners to the U.S.


And Guantanamo faces a high-profile event—the trial of 9/11 mastermind Khalid Sheikh Mohammed.


Mohammed and four associates are accused of plotting and executing the terrorist attacks that killed almost 3,000 people on September 11, 2001.


A key set of hearings in late August was postponed to October because of Hurricane Isaac. But in an AP profile, officials said hundreds of trial motions are expected and the actual murder trial could be four years away.


And that’s before the verdict could be appealed to a military court, a federal district court and the Supreme Court.


The Supreme Court decision of Boumediene v. Bush in 2008 established that Guantanamo prisoners have a right to right to habeas corpus under the Constitution, opening the door to appeals for all the detainees at some point.


But so far, the appeals haven’t made much progress.


In June 2012, the Supreme Court declined to hear appeals from seven Guantanamo detainees who lost in federal appeals court. Government critics claimed the federal court had largely ignored that Boumediene v. Bush decision.


And it doesn’t look like Guantanamo will be closing in the near future. The Obama administration faces enough opposition in Congress, from both parties, to block housing the Guantanamo detainees on American soil. And releasing the detainees as a group isn’t an option, either.


A Mitt Romney administration would most certainly block any prisoner transfer to the U.S. In a 2007 presidential primary debate, Romney said he wanted to double Guantanamo’s capacity.


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